mental rules of tenure and succession; which were held no longer sacred, when the feuds themselves no longer continued to be purely military. Hence these tenures began now to be divided into feoda propria et impropria, proper and improper funds; under the former of which divisions were comprehended such, and such only, of which we have before spoken; and under that of improper or derivative feuds were comprised all such as do not fall within the other descriptions; such, for instance, as were originally bartered and sold to the feudatory for a price; such as were held upon base or less honourable services, or upon a rent, in lieu of military service; such as were in themselves alienable, without mutual license; and such as might descend indifferently either to males or females. But, where a difference was not expressed in the creation, such new created feuds did in all respects follow the nature of an original, genuine, and proper feud. (t)

But as soon as the feudal system came to be considered in the light of a civil establishment, rather than as a military plan, the ingenuity of the same ages, which perplexed all theology with the subtilty of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon, began also to exert its influence on this copious and fruitful subject: in pursuance of which, the most refined and oppressive consequences were drawn from what originally was a plan of simplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual protection and defence. From this one foundation, in different countries of Europe, very different superstructures have been raised: what effect it has produced on the landed property of England will appear in the following chapters.

[*59]

*CHAPTER V.

OF THE ANCIENT ENGLISH TENURES.

In this chapter we shall take a short view of the ancient tenures of our English estates, or the manner in which lands, tenements, and hereditaments, might have been holden, as the same stood in force till the middle of the last century. In which we shall easily perceive, that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feudal principles and no other; being fruits of, and deduced from, the feudal policy.

Tenure. Almost all the real property of this kingdom is, by the policy of our laws, supposed to be granted by, dependent upon, and holden of, some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore styled a tenement, the possessors thereof, tenants, and the manner of their possession

(t) Feud. 2, t. T.

a tenure. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king, who is styled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king: and, thus partaking of a middle nature, were called mesne, or middle, lords. So that if the king granted a manor to A, and he granted a portion of the land to B, now B was said to hold *of A, and A of the king; or, in other words, B held his lands immediately of A, but mediately [*60] of the king. The king therefore was styled lord paramount; A was 1 [The paramount, original and ulti- outlive the reason which originated mate ownership of land.-The nature them.

of the fundamental agreement or con- The distinction between feudal tenvention of society in regard to this ure and allodial ownership, so far as changes the aspect of the whole polit- the present editor is able to understand ical and social system. In this consists and express it, is found in the distinc one of the great fundamental differ- tion between the words "tenure" and between the jurisprudence of "property.' England and of the United States.

ences

The student will find in the Commentaries sufficient discussion of the English law of real estate to understand all remnants of it which are found in our law.

He will find in the Commentaries little discussion of allodial property in land. That mode of ownership was a matter of curious reminiscence.

Feuds are carefully treated, being the ruling system of holding land.

In the United States the reverse is the case. The institution of sovereignty was destroyed and with it fell the feudal system, because there could be no lord paramount; but the change was not complete. The main idea of tenure is obsolete, but some of the incidents of the system still obtain.

Tenure" is a word expressing the species, or quality, of interest in land. It signifies a holding of another individual who has the paramount, original and ultimate ownership or property.

It arises out of a personal contractual convention, and depends upon conditions of service, the failure of which may forfeit the estate back to the origi nal individual.

The personal tie was called in the system of laws wherein tenure most flourished, allegiance, and the continuance of the estate depended upon service.

Originally the relation was reciprocal and personal to such a degree that the lord paramount could not transfer his right, nor could the vassal convey his estate. The sovereignty as well as the estate was entailed.

Property in land, or, as it is generally expressed in books, an allodial holding arises differently.

He will find it mentioned that among the Saxons the holding of land was allodial, and that all this was changed by the introduction of feudalism by the Norman conqueror. Where personal sovereignty is absent It was not of great importance to in the society, and individual liberty the author or to his readers that the is highly regarded, as it was among distinctions between the systems be plainly and clearly marked.

the Greeks, the ancient Germans and Saxons, the original convention of soPerhaps it was not to the interest of ciety, so far as it relates to personal the personal sovereign, who, just at the ownership in land, consisted in allottime when the Commentaries were writ- ment, and an agreement to protect each ten, was arrogating to himself a some- individual, in consideration of the inwhat greater dignity than had been dividual's membership in society and claimed for some time previous, that his duties depending thereon, but he the contrast between the methods of was answerable to no other individual holding should be too clearly drawn. and did not hold of any other, and was Feudalism, which had fastened itself therefore, so far as any other person upon the people, loosed its tentacles re- was concerned, the sole and exclusive luctantly and one by one. Ancient owner of the land. He was in no sense forms of conveyancing and procedure a tenant and in no sense held of another. See cases ante, p. *41.]

both tenant and lord, or was a mesne lord; and B was called tenant paravail, or the lowest tenant; being he who was supposed to make avail, or profit of the land. (a) In this manner are all the lands of the kingdom holden, which are in the hands of subjects; for, according to Sir Edward Coke, (b) in the law of England we have not properly allodium; which, we have seen, (c) is the name by which the feudists abroad distinguish such estates of the subject, as are not holden of any superior. So that at the first glance we may observe, that our lands are either plainly feuds, or partake very strongly of the feudal nature.

Tenants. All tenures being thus derived, or supposed to be derived, from the king, those that held immediately under him, in right of his crown and dignity, were called his tenants in capite, or in chief; which was the most honorable species of tenure, but at the same time subjected the tenants to greater and more burthensome services, than inferior tenures did. (d) This distinction ran through all the different sorts of tenure, of which I now proceed to give an account.

I. Species of tenures.-There seems to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced: the grand criteria of which were the natures of the several services or renders, that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services; in respect of their quantity and the time of exacting them, were either certain or uncertain. Free services were such as were not unbecoming the character of a soldier or a free-man to perform; *as to [*61] serve under his lord in the wars, to pay a sum of money, and the like. Base services were such as were fit only for peasants or persons of a servile rank; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies; as, to do military service in person, or to pay an assessment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm; which are free services: or to do whatever the lord should command; which is a base or villein service.

From the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England till the middle of the last century; and three of which subsist to this day. Of these Bracton (who wrote under Henry the Third) seems to give the clearest and most compendious account, of any author ancient or modern (e) of which the following is the outline or abstract. (f) "Tenements are of two kinds, frank-tenement and villenage. And of franktenements, some are held freely in consideration of homage and knight-service; others in free-socage with the service of fealty only."

(a) 2 Inst. 296.

(b) 1 Inst. 1.

(c) Page 47.

(d) In the Germanic constitution, the electors, the bishops, the secular princes, the imperial citles, &c., which hold directly from the emperor, are called the immediate states of the empire; all other land-holders being denominated mediate ones. Mod. Un. Hist. xliii. 61.

(e) L. 4. tr.1, c. 28.

(f) Tenementorum aliud liberum, aliud villenagium. Item, liberorum aliud tenetur libere pro homagio et servito militari; aliud in libero socagio cum fidelitate tantum.

And again, (g) "of villenages some are pure, and others privileged. He that holds in pure villenage shall do whatever is commanded him, and always be bound to an uncertain service. The other kind of villenage is called villein-socage; and these villeinsocmen do villein services, but such as are certain and determined." Of which the sense seems to be as follows: first, where the service was free but uncertain, as military service with homage, that tenure was called the tenure in *chivalry, per servitium militare, or by knight-service. Secondly, where the service was not only free, but also certain, as by [*62] fealty only, by rent and fealty, &c., that tenure was called liberum socagium, or free socage. These were the only free holdings or tenements; the others were villenous or servile, as thirdly, where the service was base in its nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly, where the service was base in its nature, but reduced to a certainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenagium privilegiatum; or it might still be called socage (from the certainty of its services), but degraded by their baseness into the inferior title of villanum socagium, villeinsocage.

I. Knight-service.-The first, most universal, and esteemed the most honourable species of tenure, was that by knight-service, called in Latin servitium militare; and in law French, chivlary, or service de chivaler, answering to the fief d'haubert of the Normans, (h) which name is expressly given it by the Mirrour. (i) This differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the genuine effect of the feudal establishment in England. To make a tenure by knight-service, a determinate quantity of land was necessary, which was called a knight's fee, feodum militare; the measure of which in 3 Edw. I, was estimated at twelve ploughlands, (k) and its value (though it varied with the times) (1) in the reigns of Edward I and Edward II, (m) was stated at 201. per annum.1 And he who held this proportion of land (or a whole fee) by knight-service, was bound to attend his lord

(g) Villenagiorum aliud parum, aliud privilegiatum. Qui tenet in puro villenagio faciet quicquid et præceptum fuerit, et semper tenebitur ad incerta. Aliud genus villenagii dicitur villanum socagium: et hujusmodi villani socmanni-villina faciunt servitia, sed certa, et determinata. $5, (h) Spelm. Gloss. 219. (1) C. 2, § 27. (k) Pasch. 3 Edw. I. Co. Litt. 69. (1) 2 Inst. 596. (m) Stat. Westm. 1, c. 86. Stat. de milit. 1 Edw. II. Co. Litt. 69.

acres might vary; nor is it at all inconsistent with this that there might be appended to the plough lands, wood, meadow and pasture, for the arable land was the principal thing considered in all ancient agriculture; wood, meadow and pastures were appendages, furnishing the estovers and botes of the tenant of the arable land. Mr. Selden contends that a knight's fee did not consist of land of a fixed extent or

1 Mr. Justice Coleridge is of the opinion that the fluctuation in the value of knight's fees was so uncertain and extraordinary that it could not be accounted for by any change in the times. With regard to the extent, he has no hesitation in assenting to the doctrine that it varied with the goodness of the land; at the same time the measure might be the same; as twelve plough lands of rich soil would contain a less space than the same number in a lighter value, but was as much as the king was and less productive soil. There might pleased to grant upon condition of hav therefore be always the same number ing the service of one knight. Tit. of of plough lands though the number of Hon. b. 2, c. 5, ss. 17 and 26.

to the wars for forty days in every year, if called upon; (n) which attendance was his reditus or return, his rent or service for the land he claimed to hold. If he held only half a knight's fee, he was only bound to attend twenty days, and so in proportion. (o) And there is reason to apprehend that this service was the whole that our

[63] ancestors meant to subject themselves to; the other fruits and consequences of this tenure being fraudulently superinduced, as the regular, (though unforeseen) appendages of the feudal system.

This tenure of knight-service had all the marks of a strict and regular feud; it was granted by words of pure donation, dedi et concessi; (p) was transferred by investiture or delivering corporal possession of the land, usually called livery of seisin; and was perfected by homage and fealty. It also drew after it these seven fruits and consequences, as inseparably incident to the tenure in chivalry: viz.: aids, relief, primer seisin, wardship, marriage, fines for alienation and escheat: all which I shall endeavor to explain, and show to be of feudal original.

Incidents of knight-service.-1. Aids were originally mere benevolences granted by the tenant to his lord, in times of difficulty and distress; (q) but in process of time they grew to be considered as a matter of right, and not of discretion. These aids were principally three; first, to ransom the lord's person, if taken prisoner; a necessary consequence of the feudal attachment and fidelity; insomuch that the neglect of doing it, whenever it was in the vassal's power, was by the strict rigour of the feudal law an absolute forfeiture of his estate. (r) Secondly, to make the lord's eldest son a knight; a matter that was formerly attended with great ceremony, pomp and expense. This aid could not be demanded till the heir was fifteen years old, or capable of bearing arms: (s) the intention of it being to breed up the eldest son and heir apparent of the seignory, to deeds of arms and chivalry, for the better defence of the nation. Thirdly, to marry the lord's eldest daughter, by giving her a suitable portion: for daughters' portions were in those days extremely slender, few lords being able to save much out of their income for this pur[*64] pose; nor could they acquire money by other means, being wholly conversant in matters of arms; nor, by the nature of their tenure, could they charge their lands with this or any other incumbrances. From bearing their proportion to these aids, no rank or profession was exempted: and therefore even the monasteries, till the time of their dissolution, contributed to the knighting of their founder's male heir (of whom their lands were holden), and the marriage of his female descendants. (t) And one cannot but observe in this particular the great resemblance which the lord and vassal of the feudal law bore to the patron and client of the Roman republic; between whom also there subsisted a mutual fealty, or engagement of defence and protection. For, with regard to the matter of aids, there were

(n) See writs for this purpose in Memorand. Scacch, 36, prefixed to Maynard's yearbook, Edw. II. (0) Litt. § 95. (p) o. Litt. 9.

(q) Auxilia fiunt de gratia et non de jure,-cum dependeant ex gratia tenentium, et non ad volentatem dominorum, (Aids arise from favor not from right-since they depend on the good will of the tenant, not on the will of the Lord.) Bracton, l. 2, tr. 1, c. 16. § 8. (r) Feud. l. 2, t. 24.

(a) 2 Inst. 233.

(t) Phillip's Life of Pole, I, 223.